Kate O'Brien v. Truro, Town of - Town Clerk (SPR 20250877)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2025 SPR25/0877 Angie Sprang Records Access Officer 24 Town Hall Road Town of Truro Truro, MA 02666 Dear Ms. Sprang: I have received the petition of Kate O’Brien appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 2, 2025, Ms. O’Brien requested the following records related to the design and placement of a new Department of Public Works “since the STM/ATM meetings last [s]pring”: [1] All communications and documents [between] [four identified individuals] and any and all Town officials, employees, committee members, contractors or subcontractors … regarding any aspect of the proposed DPW[;] [2] The document read by [an identified individual] during the Ad Hoc Building Committee of January 30, 2025[;] [3] All communications and documents regarding the reasons for and the fact of [an identified individual]’s recusal from the Ad Hoc Building Committee due to a purported or possible conflict of interest. Prior Appeal This request was the subject of a prior appeal. See SPR25/0365 Determination of the Supervisor of Records (February 12, 2025). In my February 12th determination, I ordered the Town to revise its assessed fee of $725.00, or provide further explanation of how said fee is consistent with G. L. c. 66, § 10(d). The Town provided responses on February 14, March 1, and March 3, 2025. Unsatisfied with the responses, Ms. O’Brien petitioned this office and this appeal, SPR25/0877, was opened as a result. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Angie Sprang SPR25/0877 Page 2 April 8, 2025 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s Responses In its February 14, 2025 response, the Town assessed a fee of $175.00 to provide the responsive records. In its March 1, 2025 response, the Town reduced its assessed fee to $75.00. In its March 3, 2025 response, the Town instructed Ms. O’Brien to “… bring the check in to the service desk at Town Hall … then we can get to working on filling your request.” Current Appeal In her April 1, 2025 petition to this office, Ms. O’Brien claimed that despite having paid the assessed fee, she had received no responsive records. Ms. O’Brien further requested that responsive records be provided through the date of fulfillment. Timeliness of Production of Records Ms. O’Brien is advised that the duty to comply with requests for records extends only to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Consequently, the Town is obligated to provide only those records which were in its possession at the time of Ms. O’Brien’s request.

Angie Sprang SPR25/0877 Page 3 April 8, 2025 Payment of Fees Under the Public Records Law, a records custodian is not required to produce responsive records until receipt of payment of a reasonable fee. G. L. c. 66, § 10(a)(iii). Once fees are paid, a records custodian must provide the responsive records. Where it appears the Town has received payment of the reasonable fee, the Town must provide the responsive records. To the extent possible, the Town must provide responsive records on a rolling basis. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Town is ordered to provide Ms. O’Brien with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. O’Brien may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kate O’Brien